Keith Rawleigh v. Canada Safeway Limited
Decision Date: September 29, 2009
Decision Maker: Brenda Chomey
Decision Level: Tribunal
Grounds: family status
Areas: employment practices
Keywords: Discrimination – Grounds – Family Status – Area – Employment Practices – Complainant was general clerk employed by respondent for more than 27 years – He sought exemption from night shift work so he could remain home and attend to his wife, who suffered from a degenerative eye condition which consequently rendered her legally blind – Respondent subsequently offered complainant a position as cashier, which was a demotion and consequent pay-cut – Definition of family status to be applied to unique circumstances of each case – Employer’s duty to accommodate – Whether requirement to work night shift rotations was a bona fide occupational requirement – Complainant established a prima facie case of discrimination on the grounds of family status – Respondent failed to show night shift was a bona fide occupational requirement and further failed to show they accommodated the complainant to the point of undue hardship – Hearing adjourned for parties to prepare submissions regarding remedy – Complaint allowed.
Summary:
The complainant Rawleigh was employed by Safeway for over 27 years and held the position of general clerk at the time he filed the human rights complaint. Safeway had a policy, incorporated into the collective agreement, that general clerks be required to work night shift rotations. However, some Safeway stores had permanent night shift staff and general clerks were not required to work night shifts at these stores. Rawleigh’s wife suffered from a hereditary degenerative eye condition, retinitis pigmentosa, which rendered her legally blind in 2002. Rawleigh then sought exemption from working night shifts with Safeway so that he could be at home to attend to his wife. He provided to Safeway a physician’s letter outlining the nature of his wife’s condition, and for approximately two years, was not asked to work night shifts. In 2004, changes in the permanent night shift crew resulted in Rawleigh being asked again to work night shifts. At that time, Rawleigh’s wife had undergone surgery due to complications. Rawleigh consequently asked for a leave of absence due to stress. Upon his return to work, Rawleigh was asked to work night shifts because Safeway believed Rawleigh’s wife was cured by the surgery and further because Safeway did not recognize second-party illness as a basis for night shift exemption. Rawleigh provided to Safeway three letters: one from from himself; a physician; and a person from the CNIB who described his wife’s condition.
Safeway consequently offered Rawleigh a full-time position as cashier, which was a demotion with reduction in salary. Safeway argued the reclassification of Rawleigh to the cashier position would not have the requirement of working night shifts. Rawleigh requested a transfer to other Safeway stores for positions not requiring work on evening shifts. After Safeway refused to transfer him to another store, Rawleigh requested to be reclassified as a part-time employee and advised Safeway he would be filing a human rights complaint. Rawleigh was officially moved to part-time restricted status. As a part-time restricted employee, the complainant would fall into the group of employees who would receive their scheduled work hours last, behind the full-time and part-time unrestricted employees. By moving to restricted status, the complainant would ensure that he would not have to work on the night crew, but he would not have guaranteed work hours. Rawleigh alleged he was discriminated against on the basis of family status. Safeway argued its night shift policy was a bona fide occupational requirement and that its efforts to accommodate Rawleigh were limited by provisions in the collective agreement. HELD: Complaint allowed. The Panel drew negative inference from Safeway’s store manager who refused to participate in the hearing. The Panel considered expert medical testimony and held Rawleigh established a prima facie case of discrimination on the grounds of family status. In considering the definition of “family status” the Panel held the starting point in deciding whether the complainant was prima facie discriminated against on the grounds of family status in the area of employment is the legislation. The definition of family status under the Act is broad and specifies that family status “means the status of being related to another person by blood, marriage or adoption.” The complainant and his wife met this definition. The Panel also found Safeway’s policy regarding night shift assignments and rotation formed part of the collective agreement, was prima facie neutral, and was based on genuine business reasons. However, the implementation of this policy to Rawleigh’s unique circumstances rendered this policy discriminatory. The Panel rejected Safeway’s argument that an open-ended concept of family “would have the potential to cause disruption and great mischief in the workplace.” In determining whether Safeway’s night shift policy was a bona fide occupational requirement (BFOR), the Panel applied the three-part test enunciated by the Supreme Court of Canada in Meiorin. The Panel found Safeway met the first two parts of the test, but failed to meet the third step by failing to show it accommodated Rawleigh to the point of undue hardship. The provision of an offer to Rawleigh of a cashier position, with consequent reclassification and pay cut, did not constitute accommodation to the point of undue hardship, especially when other more viable options were not explored. Based on the facts in this case, the respondent did not demonstrate that accommodating the needs of the complainant would cause undue hardship. The complainant was awarded $10,000 in general damages for injury to dignity and self respect and $20,302.38 for lost wages plus interest.
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Cases Considered: O’Malley v. Simpson Sears (S.C.C.)(1986) 7 C.H.R.R. D/3102; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. ; Brown v. Canada (Department of National Revenue, Customs and Excise) [1993] C.H.R.D. No. 7; Johnstone v. Canada (Attorney General) [2007] F.C.J. No.43; Hoyt v. Canadian National Railways [2006] C.H.R.D. No. 33; Woiden v. Lynn [2000] C.H.R.D. No. 18; Van Der Smit v. Alberta (Human Rights and Citizenship Commission), 2009 ABQB 121; Workeneh v. 922591 Alberta Ltd. 2009 ABQB 191; Alberta (Human Rights and Citizenship Commission Panel) v. Tequila Bar & Grill Ltd., 2009 ABQB 226; Walsh v. Mobil Oil Canada, 2008 ABCA 268; British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868; Hydro-Quebec v. Syndica de employee-e-s de techniques professionnelles et de bureau d’Hydro-Quebec, section locale 2000 (SCFP-FTQ), [2008] 2 S.C.R. 561; McGill University Health Centre (Montreal General Hospital) v. Syndicat des Employe’s de L’Hospital General de Montreal, 2007 SCC 4; Director of The Alberta Human Rights and Citizenship Commission and Khalid Alibhai v. Tequila Bar and Grill Ltd. operating as Tequila Nightclub (February 25, 2009) ABQB (oral decision); Brenda Davison, Chris Davison, Mark Dawe, Anne Hollis (The “Truro Employees) v. Nova Scotia Government Employees Union (“NSGEU”), 2005 NSCA 51; MacMaster (Litigation guardian of) v. York (Regional Municipality), [1997] O.J. No. (Gen. Div.); Council of Canadians with Disabilities v. Via Rail Canada Inc. (2007), 59 C.H.R.R. D/264, 2007 SCC 15; United Food and Commercial Workers, Local 401 v. Canada Safeway Ltd. (Kemp Grievance) [2007] C.L.A.D. No. 269; Canada Safeway v. United Food and Commercial Workers, Local 401 (Oliphant Grievance) [2002] A.G.A.A. No. 43; DGA Group Consultants Inc. v. Lane. (2008) CHRR Doc. 08-524 (Ont. Div. Ct.); Westfair Foods Ltd. v. United Foods and Commercial Workers Local 1400 (Adamson Grievance) [2005] S.L.A.A. No. 5; Berry v. Farm Meats Canada Ltd., 2000 ABQB 682; Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970; Alberta (Human Rights and Citizenship Commission) v. Federated Co-operatives Limited, (Trick) 2005 ABQB 587; Canadian Staff Union v. Canadian Union of Public Employees (Reynolds Grievance), [2006] N.S.L.A.A. No. 15, 88 C.L.A.S. 212; Evans v. University of British Columbia, [2007] B.C.H.R.T.D. No. 348, 2007 BCHRT 348 Watson v. Golder Associates Ltd., [2007] B.C.H.R.T.D. No. 229, 2007 BCHRT 229 British Columbia Public School Employers’ Association and British Columbia Teachers’ Federation (Sutherland Grievance), (2006) 155 L.A.C. (4th) 411; Palik v. Lloydminster Public School Division No. 99, (2006) 58 C.H.R.R. D/49 (Sask. H.R.T.); Baum v. Calgary (City), 2008 ABQB 791; Hutchinson v. Canada (Minister of the Environment), 2003 FCA 133; Callan v. Suncor Inc., 2006 ABCA 15; Anderson v. Alberta, 2004 ABQB 766; Ontario (Human Rights Commission) v. Ford Motor Co. of Canada, [2002] O.J. No. 3688; Canadian Forest Products Ltd. v. Industrial Wood and Allied Workers of Canada, Local 1-424 (Cote Grievance), (1995) 50 L.A.C. (4th) 164; Anderson v. Alberta, 2004 ABCA 766; British Columbia Public Service Agency v. British Columbia Government and Service Employees’ Union (Riess Grievance), [2006] B.C.C.A.A.A. No. 64; U.F.C.W., Local 1400 v. Westfair Foods Ltd. (2007) SKCA 22; Melody Rennie v. Peaches and Cream Skin Care Ltd. (2006), File No. N2005/07/0112; Canadian Forest Products Ltd. v. Industrial Wood and Allied Workers of Canada, Local 1-424 (Cote Grievance), (1995) 50 L.A.C. (4th) 164
Statutes Considered: Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-14, ss. 7(1)(a), 7(1)(b), 44(1)(f)
Miscellaneous Cases Considered: Douglas Anderson et al. Mosby’s Medical, Nursing, & Allied Health Dictionary, 5 Ed. (St. Louis, Missouri: Mosby Inc, 2002); M. David Lepofsky, “The Duty to Accommodate: A Purposive Approach” Canadian Labour Law Journal, Vol. 1 Butterworths – Lancaster House; Family status and marital status: Information Sheet, Human Rights and Citizenship Commission
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